November 9 is one of those strange dates haunted by history. On November 9, 1989, the Berlin Wall fell, signaling the collapse of the Soviet empire. The Nazis organized Kristallnacht on November 9, 1938, beginning their all-out campaign against Jews. On November 9, 1923, Hitler’s Beer Hall Putsch was crushed in Munich, and on November 9, 1918, Kaiser Wilhelm II abdicated and Germany was declared a republic. The date especially hovers over the history of Germany, but it marks great events in other countries as well: the Meiji Restoration in Japan, November 9, 1867; Bonaparte’s coup effectively ending the French Revolution, November 9, 1799; and the first sighting of land by the Pilgrims on the Mayflower, November 9, 1620.
On November 9, 2009, in the district court for the Southern District of New York, the Authors Guild and the Association of American Publishers were scheduled to file a settlement to resolve their suit against Google for alleged breach of copyright in its program to digitize millions of books from research libraries and to make them available, for a fee, online. Not comparable to the fall of the Berlin Wall, you might say. True, but for several months, all eyes in the world of books—authors, publishers, librarians, and a great many readers—were trained on the court and its judge, Denny Chin, because this seemingly small-scale squabble over copyright looked likely to determine the digital future for all of us.
Google has by now digitized some ten million books. On what terms will it make those texts available to readers? That is the question before Judge Chin. If he construes the case narrowly, according to precedents in class-action suits, he could conclude that none of the parties had been slighted. That decision would remove all obstacles to Google’s attempt to transform its digitizing of texts into the largest library and book-selling business the world has ever known. If Judge Chin were to take a broad view of the case, the settlement could be modified in ways that would protect the public against potential abuses of Google’s monopolistic power.
That Google’s enterprise (Google Book Search, or GBS) threatened to become an overweening monopoly became clear when the Department of Justice filed a memorandum with the court warning about the likelihood of a violation of antitrust legislation. More than four hundred other memorandums and amicus briefs also provided warnings about mounting opposition to GBS. In the face of this opposition, Google and the plaintiffs petitioned the court to delay a hearing that was scheduled for October 17 so that they could rework the settlement. Judge Chin set November 9 as the deadline when the new version of the settlement would be unveiled.
The great event turned out to be a dud, however. At the last minute, Google and the plaintiffs…
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